Eye On Regulation

A Case

In Virk v Law Society of Alberta, 2022 ABCA 2, the appellant lawyer appealed his disbarment by the Law Society of Alberta. The disciplinary hearing committee’s decision was initially reviewed by the Law Society’s Appeal Panel, which was split on the appropriateness of disbarment. While the majority upheld the sanction, the dissenting members would instead have imposed a suspension of 18 to 24 months.

One of the key points of dispute between the majority and dissenting members of the Appeal Panel related to expert medical evidence provided on behalf of the appellant at his disciplinary hearing. The appellant had been diagnosed with a mental illness which affected his behavior in ways that were relevant to the specific allegations of misconduct made against him, in particular allegations of deceptive behavior towards his clients, other lawyers and the courts.

The majority found nothing in the expert evidence to justify varying the sanction of disbarment – regardless of the appellant’s diagnosis, there was nothing unreasonable about banning him from the practice of law “when his conduct involved an egregious departure from the rules of professional ethics and had the effect of undermining public confidence in basic legal institutions”.

By contrast, the dissenting members found that the medical evidence showed the appellant was capable of rehabilitation, and in any case that the majority had placed too much weight on the medical expert’s opinion as it related to the appellant’s integrity and ability to tell the truth.

Many of the appellant’s arguments before the Court of Appeal related to the treatment of this expert medical evidence by the majority of the Appeal Board.

The Court of Appeal emphasized that “in matters of professional discipline, the profession’s internal disciplinary tribunals can apply their expertise to the issues, and they are well positioned to assess the seriousness of the professional’s misconduct, as well as the need to protect the public”. Unless there is a palpable and overriding error in the evidence itself, or a reviewable error in the inferences drawn by the tribunal from that evidence, it is not the role of the Court to reassess the sanction.

In this case, the Court found no errors on the Appeal Panel’s consideration of the medical evidence and whether it supported a sanction of disbarment. It was within the mandate of the Appeal Panel to consider the weight to be given to, and appropriate inferences to be drawn from the medical evidence. While that evidence was susceptible to different interpretations, it was not the role of the Court to simply reweigh that evidence.

Our Two Cents for Free

Expert evidence offered in the context of disciplinary proceedings may be susceptible to different interpretations by the disciplinary tribunal, particularly where it relates to the behavior of an individual facing discipline and sanction. There may not be one “right” answer in terms of what weight should be assigned to that evidence, nor what inferences it may support. A court will generally extend deference to the tribunal’s consideration of that evidence, barring a palpable and overriding error in the evidence itself, or a reviewable error in the inferences drawn by the tribunal on the basis of that evidence.

A Question

What is the range of reasonable inferences that could be drawn from the expert evidence being considered in a disciplinary proceeding? 

Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:

• A Case: a (very) brief summary of a recent and relevant case;
• Our Two Cents for Free: practical insight inspired by the files on our desks right now; and
• A Question: something to get you thinking about ways to enhance your work.

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